FOIA expert says the State Department lacks sufficient grounds for denying the request

WASHINGTON—Environmental advocates are already doubtful of the U.S. State Department's ability to conduct a transparent review of a controversial Canada-to-Texas oil pipeline.

And their suspicions were heightened recently when department decision-makers rejected their request to turn over any and all correspondence the department has had with the chief lobbyist for TransCanada, the company seeking to build what's known as the Keystone XL pipeline. The lobbyist, a man named Paul Elliott, was one of Secretary of State Hillary Clinton's former presidential campaign staffers.

In a two-page form letter dated Jan. 5, State Department authorities responded with a perfunctory rejection to the FOIA request that Friends of the Earth, the Center for International Environmental Law and Corporate Ethics International initiated in mid-December. The organizations received notice of the denial last week.

Due to the international nature of Keystone XL, Clinton's team at the State Department is tasked with granting a thumbs up or down to TransCanada's request for a presidential permit to build and operate the 1,959-mile pipeline. The complete Keystone infrastructure could carry up to 1.1 million barrels of heavy crude oil a day from tar sands mines in the province of Alberta and across six states to refineries on the Gulf of Mexico.

A decision on the multi-billion dollar proposal is expected within the next weeks or months.

Who Is Paul Elliott?

Calgary, Alberta-based TransCanada hired the native New Yorker as its government relations director more than two years ago. A review of Elliott's background indicates TransCanada evidently hired him for his political connections and knowledge of the U.S. legislative process, not his energy background. After he joined TransCanada, the Canadian American Business Council (CABC) elected Elliott to its board of directors.

Elliott graduated from Fordham University with a bachelor's degree in English literature, and starting working in public relations, according to a summary of his resume included in a July 2009 CABC news release. He served as a public affairs adviser to Robert Rubin, the treasury secretary during President Bill Clinton's administration, and later as deputy press secretary to New York City Mayor Michael Bloomberg.

Before TransCanada hired him, Elliott served as the national deputy director and chief of staff for delegate selection for the 2008 presidential campaign of then-New York Sen. Hillary Clinton. Those duties required him to manage the recruiting and electing of the delegates pledged to Clinton, ensure she was on the ballot nationwide, and strengthen her relationships with Democratic governors.

SolveClimate News reached Elliott by telephone Friday as he prepared to board a train from Washington to New York. The 40-year-old said he wasn't at liberty to speak about the situation and politely referred all questions to TransCanada's corporate offices.

Though the environmental community has no direct evidence that Clinton and Elliott have even corresponded directly in their post-election roles, the groups said they are exploring the potential for conflicts of interest.

Before they even learned about Elliott's involvement with TransCanada, seven green groups had called on Clinton to recuse herself from the pipeline decision because of public statements she made in California last autumn indicating she already backed the Keystone XL project.

"All of this raised some red flags," Carroll Muffett, president of the Center for International Environmental Law, told SolveClimate News in an interview. "It warrants our learning more and the public learning more. The fundamental purpose of FOIA is to find out how the government is making decisions. Keystone XL is a massive project with tremendous environmental implications."

"That may be a fishing expedition," he added, "but only because we think there are fish there."

Two-Part Rejection from State

In declaring the request invalid, the State Department sent the watchdogs a two-page form letter with a checklist of 10 possible reasons that FOIA requests are rejected. Two items were marked with an X. One states: "You have not reasonably described the records you seek in a way that someone familiar with Department records and programs could locate them." The other reads: "You have not agreed to pay the fees associated with the processing of your request."

"It is clear this rejection was done as a delaying tactic," Muffett said. "Given that we specified the individual (Paul Elliott), it's really hard to get more specific than that. Perhaps we can identify the time frame more narrowly."

He also pointed out that costs are routinely waived for nonprofits when they indicate that their request is for the public good.

At least one FOIA expert agrees with Muffett that the State Department lacks sufficient grounds for its denial.

After being asked by SolveClimate News to review both documents—the FOIA request and the State Department response—FOIA specialist Mark Caramanica concluded that the federal government wrongly dismissed the request on two counts without giving it the attention it deserved.

"While the request letter didn't use the most precise language, it seems to me that a reasonable person would understand what was being requested," Caramanica, FOI director with the Arlington, Va.-based Reporters Committee for Freedom of the Press, said in an interview. "Rather than deny the request, the State Department could have cleared that up with a quick phone call. That would have been the transparent thing to do."

As for the State Department's claim about the fees, he said the watchdogs were merely asking for a fee waiver, not claiming that they couldn't cover the costs for document duplication. He noted that non-commercial entities are entitled to receiving the first 100 pages of a FOIA request at no charge.

"The State Department is making assumptions that aren't there," Caramanica said. "Interpreting it as a refusal to pay is grossly inaccurate and a mischaracterization of the letter."

Requesting correspondence so high on the food chain isn't likely to be very fruitful, said Caramanica's colleague Christine Beckett, a legal fellow.

"It can't hurt to ask, but with any sort of official secretary of state business I'd find it hard to believe you'd get what you're looking for," Beckett said, adding that Clinton's correspondence on such matters will be categorized as classified or fall under a national security exemption. "They are going to come up with some reason not to give it to you."

A spokeswoman in the advocacy and oversight branch of the State Department's FOIA Requester Service Center said Friday that she had no further details on why the case was rejected.

"We're waiting to see what is happening with this case," she said. "We need to get that information from the person who actually processed the case. I can't give you a time frame on that."

Clinton's California Speech Planted Seed

All along, the State Department has maintained that the professional connection between Clinton and Elliott does not constitute a conflict of interest.

"The Department is considering this permit application on its merits," department spokespeople wrote in a statement to the press last December, according to Mother Jones magazine. "The Department is not, and will not, be influenced by prior relationships that current government officials have had."

But environmental advocacy groups are leery of that statement because of remarks Clinton made about the pipeline after an Oct. 15 speech at the Commonwealth Club of San Francisco. They feared her comments indicated the State Department was endorsing the project before completing a federally required environmental impact statement.

Last July, the Environmental Protection Agency gave the draft environmental impact statement its lowest possible ranking. EPA officials said they found the document 'inadequate" because of a lack of safety and spill-response planning and inattentiveness to the potential impact on Canada's indigenous communities.

Two of the three advocacy organizations that filed the FOIA—Friends of the Earth and the Center for International Environmental Law—joined five other groups Nov. 4 in calling for Clinton to remove herself from the pipeline decision-making process.

"The decision about whether or not to permit this pipeline is a key environmental decision for this administration, yet your recent comments make it clear that you are biased," leaders of the seven groups wrote in a two-page letter to Clinton.

The additional groups are the Center for Biological Diversity, Greenpeace USA, the Indigenous Environmental Network, Plains Justice and Public Citizen.

Lobbyist's Registration Questioned

A TransCanada spokesman dismissed as "laughable" allegations by Friends of the Earth that the Clinton-Elliott relationship casts "doubt on whether the State Department is fulfilling its obligations to conduct a thorough and transparent review of the environmental and public health dangers" of the proposed pipeline.

"It's a role performed in Washington by many individuals for dozens of companies and organizations," Terry Cunha said about Elliott's role with TransCanada.

Cunha also had an answer for FOE campaigner Alex Moore's research showing that Elliott wasn't officially registered as a TransCanada lobbyist until Dec. 16, three days after the watchdogs filed their FOIA with the State Department.

In an e-mail to SolveClimate News, Cunha explained that the Dec. 16 filing is merely TransCanada complying with the rules of the Lobbying Disclosure Act. Until the last quarter of 2010, Cunha said, Elliott did not meet the threshold for registration until the last six weeks of the year.

"To ensure full compliance, we registered TransCanada and listed Paul Elliott as the employee who qualified as a lobbyist under (the act), effective Nov. 5," Cunha said. "This filing was submitted Dec.16 to comply with the 45-day window required by the law."

Lobbying disclosure records show that Elliott's duties since November have encompassed natural gas issues in the United States and between the United States and Canada; energy reform legislation that impacts natural gas transmission; and global warming legislation such as the American Clean Energy and Security Act that petered out in Congress earlier last year.

That proves puzzling to the watchdogs because the listings don't mention TransCanada's oil pipelines.

However, his summary resume states that he directs the Canadian company's "operations and business development activities in oil pipeline, wind and natural gas transmission, liquefied natural gas and power generation."

By managing government relations in Washington and four Northeastern states, he works with state officials, Congress, the White House as well as the Departments of State, Energy and Interior to enhance "the perception of federal lawmakers and policy officials have of TransCanada projects."

Watchdogs Plot Next Move

The watchdogs' attorneys are reviewing their next move as they plan to continue seeking records from the State Department, Moore said in an interview.

If they choose to appeal the FOIA decision, doing so will allow them to hold their place in the request line, so to speak, at the State Department. The question is, can or will their case be processed before Clinton reaches a decision on the pipeline?

FOE legal director Marcie Keever said the advocates are extremely disappointed by the setback of the dismissal.

"Unfortunately, this is a typical evasive move by a government agency seeking to delay public release of records," Keever wrote in an e-mail. "This is the type of maneuver we would have expected from the Bush administration, not the Obama administration, which has touted a new era of more transparency in federal government."

UPDATE (Feb. 18): The State Department today reversed its decision to withhold correspondence between the agency and lobbyist Paul Elliott. Last December, Friends of the Earth (FOE), Corporate Ethics International and the Center for International Environmental Law filed a Freedom of Information Act request for the information.

Alex Moore, dirty fuels campaigner at FOE, said in a press statement: "We are still waiting to see if the State Department indeed releases these documents, which will shed important light on whether it is oil lobbyists or the people this pipeline would endanger who truly have the agency's ear."